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2009 DIGILAW 75 (ALL)

AJAY KUMAR SINGH v. STATE OF U P

2009-01-12

SUNIL AMBWANI

body2009
SUNIL AMBWANI, J. Heard learned counsel for the parties. 2. By this writ petition the petitioner is praying for writ of certiorari for quashing the order dated 4. 12. 2008 by which his candidature for the post of Junior Engineer (Civil) vide advertisement No. 6/3 for the recruitment to the post of Junior Engineer (Civil) (backlog) in the Public Works Department, U. P. has been rejected on the ground that he holds graduate degree in engineering. 3. The petitioner is graduate in engineering with Bachelor of Engineering from University of Pune in the year 1994. He applied for selections for Junior Engineer in the recruitment of the year 1998 for 544 posts of Junior Engineer (Civil/backlog ). The result was declared on 7. 1. 2000. The U. P. Public Service Commission sent recommendation to the U. P. Government on 30. 10. 2000, which forwarded the recommendation on 31. 10. 2000 to the Chief Engineers Office at Almora. A separate State of Uttaranchal came into existence on 9. 11. 2000. The recommendation of U. P. Government to the Government of Uttaranchal was not accepted by the Government of Uttaranchal on the ground that new reservation policy of the State of Uttaranchal is different and that there are practical and legal difficulties in giving appointment to the candidates recommended by the U. P. Public Service Commission. The matter went up to the Supreme Court in state of Uttaranchal and others v. Siddarth Srivastava and others, (2003) 9 SCC 336 . The Supreme Court held that the decision of the High Court dismissing the writ petition was not correct and gave directions in para 31 as follows: "31. It was also urged in the alternative that the State of Uttar Pradesh may be directed to give appointments to the non-official respondents. This aspect was neither raised before the High Court nor it was considered. Hence, we do not wish to deal with the same. All that we can say is that this order shall not come in the way of the State of Uttar Pradesh, if so advised, to consider the claims of the non- official respondents for appointments based on the selection made by UPPSC. Hence, we do not wish to deal with the same. All that we can say is that this order shall not come in the way of the State of Uttar Pradesh, if so advised, to consider the claims of the non- official respondents for appointments based on the selection made by UPPSC. Having regard to the peculiar situation in which the non-official respondents are placed, we would like to say that in case the non-official respondents apply as and when the applications are invited for selection either by UPPSC or by the Uttaranchal State Public Service Commission in future within a period of three years, the UPPSC or the Uttaranchal State Public Service Commission shall consider them for selection subject to their satisfying all other eligibility requirements but relaxing the upper age-limit. " 4. The candidates, whose names were included in the select list dated 7. 1. 2000 including the petitioner approached the State of U. P. for appointment. The writ petitions were allowed by the learned Single Judge. The State of U. P. filed a letter patent appeal, which was dismissed. The State of U. P. then filed Civil Appeal No. 1433 of 2006, which was allowed after reiterating the law, that the selections do not give right to appointment. The Supreme Court found that the High Court after having correctly indicated the legal position failed to apply the same to the factual scenario. Since all the posts advertised for plain cadre were filled, the stand of the State that there was no scope for appointment was accepted. The Supreme Court directed that the relaxation be given for a period of three years for appointment, when the applications are invited for selections by the U. P. Public Service Commission or Uttaranchal State Public Service Commission. The relaxation was to be granted, when fresh applications were invited. The Supreme Court allowed the appeals on March 3rd, 2006. 5. Now the post of Junior Engineers have again been advertised vide advertisement dated 29. 12. 2007. By the communication dated 4. 12. 2008 of the U. P. Public Service Commission, the petitioner has now been found ineligible to apply for the post on the ground that a degree holder is not eligible for the post. 6. Shri Vivek Mathur, learned counsel for the Public Works Department has relied upon the Single Judge judgment of this Court dated 5. 7. 12. 2008 of the U. P. Public Service Commission, the petitioner has now been found ineligible to apply for the post on the ground that a degree holder is not eligible for the post. 6. Shri Vivek Mathur, learned counsel for the Public Works Department has relied upon the Single Judge judgment of this Court dated 5. 7. 2005 in Writ Petition No. 7012 (S/s) of 2001, Anoop Ratan Awasthi v. Public Service Commission, Allahabad and others, connected with Writ Petition No. 7062 (S/s) of 2001 in which the rejection of the candidature of graduate engineers on the post of Junior Engineer (Civil), Irrigation was upheld on the ground that in Rule 8a of the U. P. Irrigation Department Civil Engineering Subordinate Service Rules, 1992 the essential qualification is diploma in engineering. Learned Judge gave following reasoning to dismiss the writ petition : (1) The qualification prescribed in the rules is diploma in engineering, which is not a minimum qualification but a required qualification; (2) In K. Kappasami and another v. State of Tamil Nadu and others, 1998 (8) ESC 459, it was held that the statutory rules cannot be overridden by executive orders or executive practice. Merely because the Government had taken a decision to amend the Rule, does not mean that the Rules stood obliterated. Till the Rule is amended, the Rule applies. (3) In Yogesh Kumar and others v. Government of NCT Delhi and others, (2003) 3 SCC 548 , it was held that recruitment to public services shall be held strictly in accordance with the tenure of advertisement and recruitment rules if any and that no deviation is permitted to deprive many others, who would have competed for the post. (4) The argument that the junior engineers acquiring degrees during the service are given special quota in promotions is applicable to those engineers, who have obtained another degree and not by those, who were graduate engineer, when they appeared in the selections. 7. I am unable to agree with the reasoning given by Honble Mr. Justice N. K. Mehrotra in deciding Anoop Ratan Awasthis case. 7. I am unable to agree with the reasoning given by Honble Mr. Justice N. K. Mehrotra in deciding Anoop Ratan Awasthis case. In my opinion, which is supported by the reasons given below, the petitioner both on the ground that his candidature was not rejected in the selections held in the year 1998 for the post of Junior Engineer and further on the ground that a degree holder having higher qualification than diploma holder cannot be held to be ineligible for the post under Rule 8-Aof the U. P. Irrigation Department Civil Engineering Subordinate Service Rules, 1992 should have been allowed to appear in the interviews. The reasons on which I disagree with the judgment in Anoop Ratan Awasthis case are given as below: " (1) The petitioner as a graduate engineer with B. E. in Civil Engineering from University of Pune (1994) had earlier applied for the post of Junior Engineer in the Minor Irrigation Department in pursuance to the Advertisement No. 3 of 1998-99. He was selected for appointment and was allotted hill cadre, which later fell in the State of Uttaranchal. The U. P. Public Service Commission or the State Government did not reject his candidature on the ground that he did not possess the requisite qualifications. The Supreme Court has vide judgment in State of Uttaranchal v. Siddharth Srivastava and others, (2003) 9 SCC 336 and the judgment in the Stale of U. P. v. Raj Kumar Sharma and others, Civil Appeal No. 1433 of 2006, dated March 3rd, 2006 directed that since all the post in the plain cadre has been filled up, there was no scope for appointment of non-official respondents. The relaxation was given for a period of three years for applicants, when applications were invited for selection by UPPSC or Uttaranchal State Public Service Commission. The relaxation is to be granted, when fresh applications are invited. The U. P. Public Service Commission and the State of U. P. are therefore stopped on the principles of constructive res judicata to question the qualifications of the petitioner to appear in the subject selections. The question whether the petitioner holds minimum qualification or required qualification was neither raised nor considered and thus the UPPSC and the State Government cannot be permitted to raise the plea again and to reject the candidature of the petitioner. The question whether the petitioner holds minimum qualification or required qualification was neither raised nor considered and thus the UPPSC and the State Government cannot be permitted to raise the plea again and to reject the candidature of the petitioner. (2) A graduate degree in Civil Engineering is a higher qualification possessed by candidate for the post than the qualification prescribed under the rules. Acandidate possessing higher qualification cannot be discriminated and held ineligible, on the ground that he does not possess required qualifications. (3) In T. R. Katha N. Daraman v. Tamil Nadu Water and Drainage Board, (1994) 8 SCC 282, it was held that a harmony has to be struck in maintaining reasonableness in the ratio between the call of the social justice and the need of higher education, without in any way jeopardising the principal object of qualification. The reasonableness of the ratio will depend upon the facts of each case. In this case the graduate engineer is not claiming any benefit, weightage or preference in appointment to the post of Junior Engineers. They are claiming to be eligible as they hold higher qualification in the subject, which is being treated as required qualification. (4) In Union of India v. D. Sundera Rama, (1997) 4 SCC 664 , the Supreme Court upheld the shortlisting of the candidates possessing higher qualification. It was held that prescribed essential qualification is minimum qualification and that mere possession of minimum qualification does not entitle a candidate to be called for interview. (5) A large number of State and private engineering colleges are turning out thousands of graduate engineers. They are finding it difficult to get jobs. The Courts have to balance their rights to be qualified for the jobs for which a lower qualification is the essential qualification. It would not serve public interest to allow graduate engineers to remain unemployed and to offer jobs of Junior Engineer to diploma holders. (6) There has been a gradual fall of standards in education and quality of work performed by Junior Engineers. With the availability of large number of graduate engineers the department may find persons with higher qualifications, more competent and suitable for the post of Junior Engineers. It is admitted that the job of Junior Engineers can be performed by degree holders and that it is not necessary that only a diploma holder is suitable for the job. " 8. With the availability of large number of graduate engineers the department may find persons with higher qualifications, more competent and suitable for the post of Junior Engineers. It is admitted that the job of Junior Engineers can be performed by degree holders and that it is not necessary that only a diploma holder is suitable for the job. " 8. In view of the difference of opinion expressed on the reasons given as above, the matter is referred to the larger Bench. The papers shall be placed by the office before Honble the Chief Justice to nominate a larger bench to decide the matter. 9. The petitioner was earlier selected to the services of Junior Engineer in Public Works Department and that under the orders of the Supreme Court age relaxation was given to all such candidates, which has now been availed by the petitioner. His candidature, therefore, could not be rejected on a new ground that he is a graduate engineer. An interim mandamus is as such issued to the respondents to allow all those graduate engineers, who hold graduate degrees and have applied for selections on the vacancies on the post of Junior Engineers, to permit them to appear in the interviews. Their results shall also be declared. However, (in case they are selected), their selections shall be subject to result of the writ petition. .